The janus-head of human rights and climate change: Adaptation and mitigation

Nordic Journal of International Law

Volumn 80, Issue 4, 2011, Pages 403-423

  Pedersen, Ole W ^a  

^a NEWCASTLE UNIVERSITY   (United Kingdom)

Author keywords

adaptation; climate change; human rights; mitigation

Indexed keywords

EID: 80155129105     PISSN: 09027351     EISSN: 15718107     Source Type: Journal    
DOI: 10.1163/157181011X598427     Document Type: Article

References (83)

1. Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States of 7 December 2005, on www.earthjustice.org/our-work/cases/ 2005/inuit-human-rights-and-climate-change.html (accessed 15 April 2010);
2. H. M. Osofsky, 'The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples' Rights', 31 Am Indian L Rev (2006-2007) p. 675;
3. T. Koivurova, 'International Legal Avenues to Address the Plight of Victims of Climate Change: Problems and Prospects' 22 J. Envtl. L & Litig. (2007) p. 267.
4. See S. Humphreys (ed.), Human Rights and Climate Change (CUP, Cambridge 2010) for scholarly attention;
5. International Human Rights Council, 'Climate Change and Human Rights: A Rough Guide', 2008, and Center for International Environmental Law, 'Human Rights and Climate Change: Practical Steps for Implementation', 2009, for NGO attention; and OHCHR, Report of the Offi ce of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61, 15 January 2009
6. S. McInerney-Lannford, M. Darrow and L. Rajamani, Human Rights and Climate Change: A Review of the International Legal Dimensions (The World Bank, Washington, DC 2011) as an example of IO work on human rights and climate change.
7. See R. J. Lazarus, 'Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future', 94 Cornell Law Review (2009) p. 1154;
8. A. Sinden, 'Climate Change and Human Right', 27:2 J Land, Resources, & Envt Law (2007) p. 255 (arguing that climate change as a profound moral problem requires a profound legal response).
9. See also L. Rajamani, 'The Increasing Currency and Relevance of Rights-Based Perspectives in the International Negotiations on Climate Change', 22:3 Journal of Environmental Law (2010) p. 39, for an examination of the role which human rights have played in climate change negotiations.
10. See E. Posner, 'Climate Change and International Human Rights Litigation: A Critical Appraisal', 155 U. Pa. L. Rev (2006-2007) p. 1925.
11. For a succinct overview see S. McInery-Lankford, 'Climate Change and Human Rights: An Introduction to Legal Issues', 33 Harv. Envtl. L. Rev. (2009) p. 431;
12. E. Cameron, 'Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach', 38 Ga. J. Int'l & Comp. L. (2010).
13. Draft Decision -/CP.16, Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, at p. 8.
14. See however J. Knox, 'Climate Change and Human Rights Law', 50:1 Virginia Journal of International Law, at pp. 38-40 for a brief discussion.
15. For a discussion of the links between denialism, cognitive dissonance and environmental issues see O. W. Pedersen, 'Diversity, Dissonance and Denial: Exploring the Canengusian Environmental Connection', 7 Journal Jurisprudence (2010) pp. 397-403.
16. H. M. Osofsky, 'The Continuing Importance of Climate Change Litigation', 1 Climate Law (2010) at pp. 9-10.
17. See H. M. Osofsky and J. K. Levit, 'The Scale of Networks?: Local Climate Change Coalitions', 8 Chicago J. Intl. L. (2008) p. 409
18. E. Ostrom, 'A Polycentric Approach to Climate Change', Policy Research Working Paper 5095, The World Bank, 2009, available on papers.ssrn.com/sol3/ papers.cfm?abstract-id=1494833& (accessed 5 May 2011).
19. Constitution of Ukraine, Ch. II, Article 50.
20. For an examination of the relationship between access to information rights and climate change see S. Kravchenko, 'Procedural Rights as a Crucial Tool to Combat Climate Change', 38:3 Ga. J. Int'l & Comp. L. (2010) p. 613.
21. Environment-People-Law v. Cabinet of Ministers of Ukraine and National Agency of Environmental Investments, Lviv Circuit Admin. Court (2009), available on epl.org.ua/en/lawnbspnbspnbsp/access-to-information/cases/violation-of-the- legislation-on-the-right-to-information-and-public -participation-in-climate- change-issues-by-the-ministry-of-environmental-protection-in-ukraine/ (accessed 5 May 2011).
22. See also S. Kravchenko, 'Is Access to Environmental Information a Fundamental Human Right?', 11 Oregon Review of International Law (2009) p. 227.
23. See N. Roht-Arriaza, 'Human Rights in the Climate Change Regime', 1:2 Journal of Human Rights and the Environment (2010) p. 211 at pp. 213-219,
24. for a discussion of human rights responsibilities and CDM participation, see M. Orellana, 'A Rights-Based Approach to Climate Change Mitigation', in T. Greiber (ed.), Conservation with Justice - A Rights-based Approach (Gland: IUCN, 2009) pp. 37-64
25. R. Lyster, 'REDD+, transparency, Participation and Resource Rights: The Role of Law', 14 Environmental Science & Policy (2011) pp. 118-126.
26. A full assessment of the relationship between climate change and indigenous people in general merits more space than this paper is able to afford as this paper deals with the human rights limitations imposed on mitigation and adaptation policies. See instead M. Macchi, 'Indigenous and Traditional Peoples and Climate Change', Issue Paper, IUCN, 2008 (describing how climate change is likely to disproportionately aff ect indigenous people and how the knowledge and expertise of indigenous groups holds lessons for mitigation and adaptation)
27. R. Tsosie, 'Indigenous People and Environmental Justice: The Impact of Climate Change', 78 U. Colo. L. Rev. (2007) p. 1625, who, as a result of the impacts that climate change is likely to have on indigenous people, argues for a recognition of a right for indigenous people to "environmental self-determination".
28. United Nations Declaration on the Rights of Indigenous Peoples, Article 8.
29. The REDD+ initiative goes beyond the REDD initiative in that it focuses on issues of sustainable management and conservation of forests in the attempt to preserve forest carbon stocks (and not merely on deforestation). At the recent COP-16 Meeting in Cancun, the parties to the UNFCCC reached an agreement whereby developing countries are encouraged to contribute to mitigation through REDD and REDD+ initiatives and in this process develop national forest strategies and action plans.
30. See also N. Roht-Arriaza, '"First, Do No Harm": Human Rights and Efforts to Combat Climate Change', 38:3 Ga. J. Int'l & Comp. L. (2010) p. 593 and website of International Rivers noting that as of September 2010, 1525 hydro projects were registered or seeking registration with the CDM. More than half of which are in China, www.internationalrivers.org/en/climate-change/ carbon-trading-cdm/spreadsheet-hydro-projects-cdm -project-pipeline (accessed 5 May 2011).
31. Inter-Am. C.H.R., Maya indigenous community of the Toledo District v. Belize, Case 12.053, Report No. 40/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004).
32. Inter-Am. Court H.R., Case of the Saramaka People v. Suriname, Judgment of 28 November 2007 (Preliminary Objections, Merits, Reparations, and Costs), Series C No. 172
33. Case of the Saramaka People v. Suriname, Judgment of 12 August 2008 (Interpretation of the Judgement on Preliminary Objections, Merits, Reparations, and Costs), Series C No. 185.
34. Article 29(b) of the American Convention provides that no provision in the Convention shall be interpreted as "restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party".
35. Inter-Am. C.H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgement of 31 August 2001 (reprinted in 19 Ariz. J. Int'l & Comp. L. (2002) p. 395).
36. The Court noted: "Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with their land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival" (at 149).
37. See also M. Barelli, 'The Role of Soft Law in the In the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples', 58 ICLQ (2009) p. 957.
38. See for a comparative account of domestic recognition of indigenous groups S. Wiessner, 'Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis', 12 Harv. Hum. Rts. J. (1999) p. 57, arguing that "[t]oday, many of these proposed or actual prescriptions, coinciding, as they do, with domestic state practice ⋯ have created a new set of shared expectations about the legal status and rights of indigenous people that has matured and crystallized into customary international law" (at p. 109).
39. For an analysis on how customary norms emerge see in general I. Brownlie, Principles of Public International Law, 7th ed. (Oxford University Press, Oxford, 2008) pp. 6-12.
40. S. J. Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford University Press, New York, 2004) p. 61.
41. See M. Fitzmaurice, Contemporary Issue in International Environmental Law (Edward Elgar, Cheltenham, 2009) ch. 4 for an analysis of the Court's environmental case law.
42. For analysis of this procedural approach see A. Boyle, 'Human Rights or Environmental Rights? A Reassessment', 18 Fordham Environmental Law Review (2007) p. 471
43. C. Hilson, 'Risk and the European Convention on Human Rights: Towards a New Approach', in C. Barnard and O. Okudu (eds.), The Cambridge Yearbook of European Legal Studies 2008-2009 (Hart Publishing, Oxford, 2009).
44. See in general O. W. Pedersen, 'European Environmental Human Rights and Environmental Rights: A Long Time Coming?', 21 Georgetown International Environmental Law Review (2008) p. 73.
45. López Ostra, (1995) 20 EHRR 277.
46. Taskin and others v. Turkey, (2006) 42 EHRR 50.
47. See O. W. Pedersen, 'The Ties that Bind: The Environment, the European Convention on Human Rights and the Rule of Law', 16:4 European Public Law (2010) p. 571, discussing the rule of law approach.
48. The aim of mitigation in the Act is to be delivered through carbon budgets aiming to lower UK carbon emission by 80 per cent by 2050, cf. Sections 1(1), 4 and 5 compared to a 1990 baseline.
49. The fi rst of these programmes is due in 2012.
50. For an analysis of the Act see M. Stallworthy, 'Legislating Against Climate Change: A UK Perspective on a Sisyphean Challenge', 72:3 The Modern Law Review (2009) p. 412, arguing that the "main vehicle for substantive control over performance appears to lie through direct accountability to Parliament" (at p. 423) and that "it is not apparent on what basis such alleged breaches as exceeding budgets could be followed by recognised legal consequences" (at p. 424).
51. For a critique of the ambitious carbon reduction targets set in the Act (2008) see R. A. Pielke Jr., 'The British Climate Change Act: A Critical Evaluation and Proposed Alternative Approach', 4 Environ. Res. Lett. (2009) p. 1.
52. Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 38 ILM (1999) p. 517.
53. See Demir and Baykara v. Turkey Appl. no. 34503/97, where the Court noted that in "the Taskin and Others v. Turkey case, the Court built on its case-law concerning Article 8 of the Convention in matters of environmental protection (an aspect regarded as forming part of the individual's private life) largely on the basis of principles enshrined in the Aarhus Convention" (at 83).
54. Tatar v. Romania, decision of 21 January 2009, Appl. no. 6702/01, at 118;
55. D. Shelton, 'Developing Substantive Environmental Rights', 1:1 Journal of Human Rights and the Environment (2010) p. 89.
56. Guerra and others v. Italy, (1998) 26 EHRR 357.
57. Öneryildiz v. Turkey, (2005), Appl. no. 48939/99, at 90.
58. Brânduse v. Romania, decision of 7 April 2009, Appl. no. 6586/03.
59. See also Giacomelli v. Italy, (2006) 5 EHRR 871, at 83
60. Hatton and others v. United Kingdom, (2003) 37 EHRR 28, at 128.
61. The Court partly relied on the Romanian Constitution which provides for a right to a healthy environment in Article 35.
62. The fact that a particular risk is established in an EIA is as such enough to trigger Article 8 applicability.
63. Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L41 26).
64. Budayeva and others v. Russia, decision of 20 March 2008, Appl. no. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, at 129.
65. H. M. Osofsky 'Learning from Environmental Justice: A New Model for International Environmental Rights', 24 Stan. Envtl. L. J. (2005) p. 71, at p. 86.
66. See R. Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility (Brill, Leiden, 2005) pp. 248-266 for an enlightening discussion on causation and climate change. Verheyen observes that one way around the causation problem (and in particular the problem of establishing liability where a wide range of actors have contributed to the harm, i.e. cumulative causation) would be to apportion liability according to the contribution to the overall amount of emissions which a particular actor has emitted (at p. 254).
67. See also S. Caney, 'Human Rights, Responsibilities, and Climate Change', in C. Beitz and R. Goodin (eds.), Global Basic Rights (Oxford University Press, New York, 2009) for a similar argument.
68. See also D. Shelton, 'International Decisions: Tatar c. Roumanie', 104 A.J.I.L (2010) p. 247.
69. See also Oluic v. Croatia, decision of 20 May 2010, Appl. no. 61260/08, where the Court relied on noise guidelines promulgated by the World Health Organization (WHO) in fi nding a violation of Article 8 as a result of noise disturbances contrasted by the outcome in Fagerskjöld v. Sweden, decision of 26 February 2008, Appl. no. 37664/04,
70. M. Forowicz, The Reception of International Law in the European Court of Human Rights (OUP, Oxford, 2010) more generally.
71. House of Lords, Marcic v. Th ames Water Utilities Plc, [2004] Env. LR 25.
72. Loizidou v. Turkey, Application no. 15318/89, (1995) 20 E.H.R.R. 99, at 62.
73. S. Miller, 'Revisiting Extraterritorial Jurisdiction: A Territorial Justifi cation for Extraterritorial Jurisdiction under the European Convention', 20:4 E.J.I.L. (2010) p. 1223, at p. 1238.
74. Drozd and Janousek v. France and Spain, (1992) 14 EHRR 745, at 91.
75. Miller notes that the decision in Drozd is better viewed as another form of 'eff ective control' case "distinct from the functional control extended by military action: Eff ective control of another country's administrative institutions by virtue of custom and longstanding sovereign arrangements" insofar as the complaint was found inadmissible as a result of France and Spain not exercising eff ective control (at pp. 1241-1242).
76. Loizidou v. Turkeyi (Preliminary Objections), (1995) 20 EHRR 99, at 62.
77. Bankovic v. Belgium, (2007) 44 EHRR SE5, at 69.
78. See also Athanassoglou v. Switzerland, (2001) 31 EHRR 16, relating to the assessment of nuclear power policy under Article 6, where the Court found that such issues were best dealt with on the national level.
79. Greenpeace E.V. and others v. Germany, decision of 12 May 2009, Appl. no. 1821/06.
80. See Fredin v. Sweden, EHRR (1991) 784 at 794.
81. Depalle v. France, decision of 29 March 2010, Appl. no. 34044/02, at 84.
82. See also Brosset- Triboulet and other v. France, decision of 29 March 2010, Appl. no. 34078/02,
83. Alatulkkila and Others v. Finland, decision of 28 July 2005, Appl. no.33538/96.